Warnings? Suspensions? Dismissal? – Problems at Work Kate Scarlet – Community Lawyer

Outline What can go wrong? Dismissals Suspensions Personal Grievances Legal Process – Mediation – ERA – Employment Court Who can help?

What can go wrong? Personal grievance grounds – Dismissal – Disadvantage (including bullying &warnings) Breach of contract Breach of minimum conditions – Holiday pay – Health & safety Discrimination or Harassment

Grounds for Personal Grievance Unjustified dismissal – Constructive dismissal Unjustified disadvantage Discrimination Sexual harassment Racial harassment Duress over union membership

Dismissals You can only challenge a dismissal through a Personal Grievance To dismiss an employer needs: Substantive Justification + Procedural fairness

Test of justification Whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

When can your boss punish/sack you? Must be a good reason – Misconduct – Poor performance – Incapacity – Redundancy – Other justifiable reason Must follow fair procedures

Procedural fairness Sufficient investigation Raised concerns before action Reasonable opportunity to respond Genuinely considered employee’s explanation

Suspensions Required to not attend work Paid/unpaid Justifiable reason Consultation may be required

Case study David is employed as a secretary at Files and Things Inc. David used to have bleached hair but his new manager Georgina gave him a written warning about his appearance, and he dyed it a natural colour. This week, Georgina criticised the way David was talking to clients and told him to “smarten up your act or you’ll be out of here”. David has tried to be more polite to clients but he is unsure what brought on Georgina’s criticism. Yesterday, Georgina handed David a final written warning and a dismissal letter. The reason she gave for the dismissal was that “your appearance and attitude are not well-suited to an office environment”. Does David have grounds for a personal grievance? If so what are these?

Personal Grievances Check employment agreement Raise it Who is it against? 90 Days Outline basis for grievance Outline solutions

Remedies Reinstatement Lost wages Hurt and humiliation Written reference Certificate of service Agreement not to speak ill of each other Apology

Personal Grievance exercise Dear Georgina, I just wanted you to know that I intend to raise a Personal Grievance. The way you have treated me is completely crap and very unfair and you should not have fired me like you did. Can we meet to discuss this on Monday at 9am? Please give me a call on (04) to arrange this. Regards David What is missing from this personal grievance?

Legal Process Talking to employer Mediation Employment Relations Authority Employment Court

Talking to your Employer Cheap and quick Stay on topic – Notes Support person Stay calm Leave if necessary

Mediation Don’t need a lawyer – Support person or people may be useful Identify issues, points of agreement, find solutions Can record settlements – Binding and confidential Can reach alternative arrangements MBIE –

Employment Relations Authority Don’t need a lawyer File a statement of problem – Facts causing problem – Steps take to try and solve problem e.g. mediation – What resolution you would like – Other relevant documents – ERA website - Preliminary conferences The investigative meeting

Employment Court Lawyer advisable Stricter rules of evidence Re-do entire case 28 days

Other options Human Rights Tribunal Labour inspectors – Minimum entitlements – MBIE

Who can help? Community Law – Wellington – Wednesday pm – Hutt Valley – Tuesday 5-7pm Ministry of Business, Innovation &Technology – – Employment Relations Authority – – CAB/Workers’ Rights Service Support person

Questions?